VOL. XV.] THURSDAY, JAN. 15, 1885. [No. 23. judice.

Supreme Court.

operations for oil purposes upon some portion | ton in terms covered the machinery, lumber, and

of said lands up to the commencement of this action, putting down, completing, and operating ten or twelve wells, and has complied with all the terms and conditions of the lease.

At the time the defendant Hague commenced to put down the first well under his lease it was verbally agreed between him and his lessors that the several tracts leased should be divided into quarters, and that the defendant should have the northeast and southwest quarters of said tracts for his operations; and all the defendant's operations since have been carried on in accordance with this verbal agreement upon the portions of the several tracts allowed to him, and the land in controversy is the southwest quarter of tract 108. It is under this lease that the defendant claims the right to the possession of the land claimed by the plaintiff in this action.

all personal property about the mill. As a part of the terms of partition White agreed to release all his right to the 140 acres of improved land, the mill building, and personal property, in consideration of which the Butterfields agreed to release all their interest in the whole of tracts Nos. 108 and 2837 to White. In pursuance of this amicable partition White, by deed bearing date July 12, 1880, released and quit-claimed all his interest in the east one-half and the southwest one-fourth of all the tracts except Nos. 108 and 2837; also all his interest in the 140 acres in Tiona, to include the improvements and oil wells thereon, and all the buildings and saw-mill, and his interest in all the machinery of every kind and personal property. The two Butterfields, by deed bearing the same date, released and quitclaimed to White all their interest in the whole of tracts Nos. 108 and 2837, and in the northwest one-fourth of all the other tracts. On the 30th day of December, A. D. 1880, the plaintiffs in this action purchased of Willard White fifty acres, the southwest corner of tract No. 108 (the land in controversy) in fee.

On the 24th day of February, 1873, one of the defendant's lessors (John Hill) executed and delivered a mortgage to James A. Knowlton upon his then undivided one-fourth interest in the lands as purchased by him in common with the two Butterfields and E. G. Wood, to secure the payment of the sum of $20,000. This mortgage was recorded March 8, 1873, and was foreclosed by scire facias thereupon to No. 42, March Term, 1880; and the undivided one-fourth interest of John Hill in said land, including the fifty acres in controversy, became vested in James A. Knowlton, by sheriff's deed, on the 10th day of March, 1880. On the 15th day of June, 1880, James A. Knowlton conveyed to Willard White all the interest acquired by him in all the lands formerly conveyed by Hall to Hill et al. This last conveyance vested in Willard White a clear, unincumbered title in fee simple to the undivided one-fourth of all the lands originally conveyed to Hill as a tenant in common with A. B. Butterfield and E. L. Butterfield (said Butterfields having formerly acquired the title of E. G. Wood). Hague, the defendant, still held the lease of the undivided three-fourths owned by the Butterfields, the lease being discharged from the one-fourth interest lot. formerly owned by Hill (now Willard White), by the sale upon the mortgage.

Hague, the defendant, was not a party to the partition of July 12, 1880, between the Butterfields and White, and had no notice of it. White had notice at the time of this parti tion of Hague's lease, and also of the verbal agreement under it, by which Hague was to operate on the northeast and southwest quarter of each of the tracts. After the partition White said to Hague, "You are now my lessee of tract No. 108, I would like to have operations commenced." At the time of the partition, Clapp, one of the lessors, told White that if they (the Butterfields) accepted his (White's) proposition, it must be subject to the Hague lease; to which White replied, that he could get along with Hague. Subsequent, however, to this conversation, and before Hague had commenced operations on tract No. 108, White notified him not to do anything upon the property in controversy, and forbade Hague's employés putting up derricks and making other expenditures upon this

In January or February, 1881, six months. after the partition, Hague commenced operations upon the fifty acres in controversy, and continued operations thereupon for all purposes up to the commencement of this action.

The plaintiffs presented, inter alia, the following points to the Court:

On July 12, 1880, Willard White and A. B. Butterfield, and E. L. Butterfield, the owners of the fee, made an amicable partition of all the lands. By the terms of this partition it was first agreed that White should have the northwest quarter of each tract, the Butterfields to take the other parts. One hundred and forty acres of the property, part of tracts Nos. 164 and 201, were improved, and had a mill upon them worth ten thousand dollars, together with some personal property. The mortgage given by Hill to Knowl-owners of the fee.

(2) A person owning an estate less than freehold in land is not entitled to notice of the partition of the land, or to be made a party to proceedings relative thereto in the courts, or deeds when made in that manner, as between the

Answer. We answer this point by saying that | it the whole value of the tenant's estate may be a tenant under a lease for oil purposes has such swept from him. an estate or interest in the land as entitles him to notice of an action of partition.

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"In this case it may be admitted, that as between White and the Butterfields the division (3) The lease from Butterfield and others to was fair, and that one-fourth of the mill tract W. W. Hague, dated August 30, 1877, vested and improvements were worth as much as threein Hague no interest in the land therein de-fourths of two other tracts of equal size (but if scribed, or the oil thereunder, which would entitle him to notice of or participation in partition proceedings between the owners of land in fee, whether by law or voluntary by deeds between themselves.

Answer. We negative this point.

(4) The mortgage of Hill to Knowlton having become a lien by being recorded prior to the lease to Hague, the sale under proceedings upon said mortgage vested a clear and unincumbered title to the land described in said mortgage, the undivided one fourth, free from the lease of Hague in the sheriff's vendee and his assigns, and the partition subsequently made between White and his co-tenants vested in the former in severalty the lands described in the deeds clear of the Hague lease.

the defendant be bound by the partition, he must take two alternate quarters of the mill tract, subject to the restriction in his lease, which prohibits him from drilling upon the improved land in lieu of three undivided fourth parts of two alternate quarters of each of three tracts, or in the proportion of the entirety of two acres for three undivided fourth parts of six acres-equal to one acre in lieu of two and one-quarter acres), and if so bound in this case, he would be equally bound in any other in which the partition might be fair between the parties making it. It might have happened that the mill tract and improvements were worth three times as much as all the other lands, then as between White and the other reversioners a partition which would give the mill tract to the latter, and all the other lands Answer. We affirm the first proposition con- to the former would be perfectly fair, then if the tained in this point. We negative the later mill tract be all improved the defendant would proposition contained in this point by saying that Hague, having no notice of the partition, he is unaffected by it, and his lease remains upon the undivided three-fourths precisely as though the partition had not occurred.

The Court found, as a conclusion of law, that Hague, the defendant, was not bound by or affected by the amicable partition of July 12, 1880, between Willard White and the Butterfields, he having no notice of said partition; and, also, that the lease was for a tangible, corporeal product of the land, and, consequently as Hague had the exclusive right, was an interest in the land itself.

The Court, in its opinion, proceeded as follows:

"We think Hague, the defendant, had under his lease, such an interest or estate in the land in controversy, as would have entitled him to notice, had the land been divided by a suit in partition, and this amicable partition having taken place without notice to him, he is unaffected by it, and cannot be ousted of his possession of the three undivided fourths interest in the land in controversy, by an action of ejectment. It must be conceded under the decided cases, that judgment and mortgage creditors are bound by an amicable partition justly and fairly made, but such creditors have no indefeasible estate in the land divided, and if the division be fair and just they cannot be injured by it; but not so in case of a tenant under a lease for oil purposes. As between the parties to the arrangement it may be fair and reasonable, and yet by

get nothing for his three undivided fourth parts of the alternate quarters' of the tracts allotted to White. Suppose further, that the defendant had drilled many oil wells on one quarter of each of the tracts before the partition, and that the quarters upon which he had so drilled should be allotted to White, would the defendant be bound by such a division?

"The property under the defendant's lease covered a large extent of territory. Suppose developments upon the land or outside of the land had demonstrated that a portion of it was extremely valuable for oil purposes, and another portion of it of no value for such purposes, and when such facts had been clearly demonstrated, could the owners of the fee by any arrangement fair as among themselves (and vastly to their mutual interest) turn the tenant away from that which was valuable for the purpose for which he became the tenant to that portion of the land which for his purposes had no value? If the rule sought to be established by the able argument of the plaintiff's counsel be the correct one, then all this may occur, and will occur, and the tenant be powerless to avert it. The Court find in favor of the plaintiffs for the one undivided fourth part of the land described in the plaintiffs' writ in this case, and in favor of the defendant for the undivided threefourths of the land described in the plaintiff's writ."

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Exceptions were filed by the plaintiffs, which were dismissed by the Court, and judgment was entered in accordance with the decision of the

Court. Whereupon plaintiffs took this writ, assigning for error the answers to the points as given above, the conclusions of law, and the entry of judgment as above.

Roger Sherman and Wm. Lindsey (Johnson, Parmlee, and Dinsmore & Cable with them), for the plaintiffs in error.

A partition may be fairly made by agreement, and the same rule as to liens apply as in regular partition proceedings.

Bavington v. Clark, 2 P. & W. 115.
Jackson v. Willard, 10 Johns. 414.
Williard v. Williard, 6 Smith, 119.
One who has not a freehold interest in land
cannot be joined in an action of partition.
Mark v. Mark, 9 Watts, 410.
Long's Appeal, 27 Smith, 151.
McKee v. Straub, 2 Binn. 1.

The lease for oil purposes was nothing more than a license for a term of years reserving a royalty.

Funk v. Haldeman, 3 Smith, 243.
Munroe v. Armstrong, 15 Norris, 307.
Brown v. Vandergrift, 30 Sm. 142.

There was no change in the property in the oil, except as to that which might be raised to the surface, and this Hague could own in com

mon with his lessors as a chattel.

Johnstown Iron Co. v. Cambria Iron Co., 8 Casey,

October 6, 1884. THE COURT. Clapp and others granted, demised, and leased unto Hague "the exclusive right for the sole and only purpose of mining and excavating for petroleum, rock or carbon oil, all that certain tract of land," being one half of a large number of lots, the lessee to have one-half of the above lots in alternate quarters," and "to hold the said premises exclusively for the said purposes only," for the term of twenty years. The purpose of the lease is first named, but that the land is leased for that purpose is as plain as if the description of the land preceded the clause restricting its use. Following the description, it is stipulated that the lessee shall have alternate quarters, and hold the premises exclusively for said purpose. The lessors except out of the demise the improved land, and may use all the land for tillage

and lumbering, which is not necessary for mining
or producing oil. A portion of the oil that may
be produced is reserved as rent or royalty.
Failure of the lessee to perform his covenants
will avoid the lease. Notwithstanding these
stipulations the lessee is vested with an interest
in the land. (Chicago & Allegheny Oil & Min-
ing Co. v. U. S. Petroleum Co., 57 Pa. St. 83.)
His interest is that of a tenant for years for the
purpose of mining, he has an absolute right of
possession of all the surface necessary, and no
one else can rightfully take out oil during the
term, save under him. The whole of the oil,
or only a part, may be taken under the lease,
but whatever shall be taken is of the substance
of the realty. He
He is not an absolute owner of
the whole of the oil as he would be were all the
oil in place conveyed to him in fee.

Prior to the execution of the lease, one of the tenants in common had mortgaged his undivided one-fourth of the lands, and subsequently said fourth was sold in satisfaction of the mortgage. By agreement the purchaser made partition with his part in severalty. It was competent for them the other owners of the fee, acquiring thereby with respect to their own interest to divide the land as they pleased, and they did. Two entire tracts were allotted to the purchaser, and the plaintiffs holding under him, claim that said tracts are freed from the lease. It is not denied that the undivided one-fourth of the tracts was so freed by the sheriff's sale, but the defendant insists that neither by action in partition without making him a party thereto, nor by agreement, can the owners in fee divide the land to his prejudice. His lease entitled him to alternate quarters of each tract, a right that has been impaired by reason of the lien that existed on the undivided fourth, but subsisting as to the other three-fourths. If anything be needed to show how he is likely to be injured, or how the value of his lease is probably lessened, by excluding him from the tracts now owned in fee and severalty by the plaintiffs, it may be found in the opinion of the learned Judge of the Common Pleas.

Under the lease the defendant's right is an estate, not a lien. It is settled that a lien creditor of a tenant in common is not entitled to notice of partition, and if partition be fairly made, thereafter the lien shall be exclusively on the part allotted to the debtor. This is so with a mortgage, for though in form a deed and clothing the mortgagee with some of the benefits of a purchaser, in other respects it is only a security for a debt. (Long's Appeal, 57 Pa. St. 151.) The security is as ample on a separate fourth part as on an undivided fourth, and a lien creditor is not prejudiced by an equal and just partition. But such partition might be made

among the owners in fee, and the lessee of one | (2 Binn. 1); Long's Appeal (77 Pa. St. 151); of them be deprived of all future benefit from and Mark v. Mark (9 Watts, 410). The last his lease, if he can be shifted to the part allotted to his lessor; as in case of the lease of a tract, part of which is woodland, for residence and tillage, and the woodland alone be allotted to the lessor, the woodland being of equal value with the improved.

two cases are not in point. Mark v. Mark was decided on the ground that neither the widow nor the executors of a decedent, who was a tenant in common in his lifetime, had an estate in the land. Long's Appeal ruled that a mortgagee cannot be a party in partition of land The term of a tenant for years may be so owned by the mortgagor and others as tenants short, or his lease of such nature, that he has no in common, and that the lien of the mortgage real interest to protect in the partition. In attached to the part taken by the mortgagor in equity when a lessee has a long term of years severalty. In McKee v. Straub the decision was under a tenant in common of the freehold, he put on two grounds, first, that the action had is entitled to partition against the other tenants abated by the death of one of the parties; and in common, without bringing the reversioner of second, that the tenants had not a freehold the share demanded before the Court. (1 estate. The first was fatal. The second received Daniel Ch. R. 257.) Nor does it constitute any very brief remark, and neither counsel nor Court objection that the partition does not finally con-noted the statute of 32 Henry VIII. c. 32. Had clude the interests of all persons. Partition that statute been brought to the attention of the will be made among the parties before the Court, who possess competent present interests, such as a tenant for life or years. (1 Story Eq. Jur. § 656.) A partition by contract may be conscionable between the parties, and so unjust as to others that it ought not to affect them. Why should it be permitted that a landlord may agree with other tenants in common to a division prejudicial to his lessee so as to bind the lessee? When the other tenants in common have actual or constructive notice of the lease, it is inequit able that they should join in depriving the lessee of his rights, and no precedent has been cited sanctioning such proceeding. In this case White had express notice of the lease from the lessors, and after the partition said to Hague, "You are now my lessee of tract No. 108, I would like to have operations commenced." But the plaintiffs purchased without other notice than that furnished by the record.

Court, instead of others which did not touch the point, the reversal might have been on the first ground alone. Be that as it may, it seems clear that the statute was not considered, and that misconstruction thereof is not demanded by the decision.

Judgment affirmed.
Opinion by TRUNKEY,
GREEN, J., absent.

Jan. '84, 246.

J.

W. M. S., Jr.

March 6, 1884.

Getz v. Philadelphia and Reading R. R. Co.

Eminent domain Damages Leasehold Practice-Joinder of owner and lessee in action for damages-Rules of Court-Errors and appeals-Specifications of errors.

When a firm composed of father and son held and used certain real estate of the father for the business of the firm, under a parol lease of uncertain duration, but at a damages for injury to their leasehold, business, machinery, fixed annual rental, such firm is entitled to recover etc., caused by a railroad company appropriating part of the real estate by virtue of the power of eminent domain.

The owner of land and the lessee thereof may, if no objection is raised by the railroad company, join in proceedings to recover damages for their respective interests in real estate appropriated by said company by virtue of the power of eminent domain.

If it be that partition by contract has like effect as partition at law, a tenant for years who is not a party shall not be prejudiced. The statute of 32 Henry VIII. c. 32, enables tenants in common where one or some of them have an estate for life or years with other or others who have an estate of inheritance or freehold, to have partition; and provides that no such partition or severance shall be prejudicial or hurtful to any person not a party to such partition. This statute is reported by the Judges, and so published to be in force in Pennsylvania. Any person, by its terms, may be a party who is entitled to partition. Partition is of right between tenants in common when some hold an estate for years and others a freehold estate, and no such person shall be prejudiced or hurt unless he be made a party. In support of the position that a person who has not a freehold interest in the land canWhen a point is answered in such a way as to be tantanot be made a party in partition with the owners mount to a refusal, an assignment of error must nevertheof the fee, the plaintiffs cite McKee v. Straub | less set out the answer totidem verbis.

In such case the damages to the lessor and lessee may

be assessed by the jury in gross, but the better practice is to find a verdict for the aggregate amount, and then apportion the same among the several claimants.

pany is entitled to interest upon the damages awarded A party whose land is appropriated by a railroad comhim from the time of the location of the road upon his land.